Relates to implementation of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008

Under this measure, in order to establish such a guardianship; the prospective relative guardian must file a petition for guardianship under Article 6 of the Family Court Act or Article 17 of the Surrogate's Court Procedure Act with the court presiding over a pending child protective or permanency proceeding. The court may consolidate the hearing of the guardianship petition with the child protective disposition or permanency hearing. If guardianship is granted, all orders under the child protective or permanency proceeding, as applicable, would be terminated; no further permanency hearings would be held and no services or supervision would be provided.

This measure would amend section 409-e of the Social Services Law to set forth the tasks local departments of social services must perform to assess eligibility for, and to pursue, the subsidized guardianship option. These tasks are drawn directly from Federal program instructions adopted to implement the Act. Among them, the court must make all of the following findings in accordance with new sections 1055-c or 1089-b of the Family Court Act:

(i) that the subsidized guardianship is in the child's best interests and that neither a return to the child's birth parents nor adoption would be appropriate permanency goals;

(ii) that the termination of orders will not jeopardize the child's safety; and that the guardianship will provide the child with a safe and permanent home;

(iii) that the child demonstrates a strong attachment to the relative and the relative demonstrates a strong commitment to caring permanently for the child;

(iv) that the relative has been approved or certified as a foster parent and has had a background check, including a national criminal records check, in accordance with Social Services Law §378;

(v) that the child has been in foster care for not less than fourteen months and in the care of the proposed guardian for not less than six consecutive months preceding the filing of the guardianship petition;

(vi) that the prospective relative guardian, the child's attorney and the local department of social services consent to appointment of the

guardian and to termination of orders issued in the child protective or permanency proceeding;

(vii) that the local department of social services and the prospective relative guardian have already entered into a written, binding kinship guardianship assistance agreement, a copy of which was provided by the local department of social services to the prospective relative guardian; and (viii) for a youth between 14 and 17, that he or she has indicated a position regarding the proposed guardianship and, for a youth who is 18 years of age or older, that he or she has consented to the proposed guardianship.

A child who is the subject of a guardianship would be represented by the same attorney as in the child protective or permanency proceeding and the prospective relative guardian would be able to obtain resources for an attorney as a non-recurring expense up to $2,000, pursuant to the Act, similar to the practice in subsidized adoptions. The order appointing the guardian must require that the local department of social services and the child's attorney receive notice of and be made parties to any subsequent proceeding to vacate or modify the order of subsidized guardianship.

Establishment of subsidized kinship guardianship as a permanency option in New York State is long overdue, as it has been utilized successfully in 39 other states, plus the District of Columbia. Twelve of these jurisdictions have provided it through a federal waiver, while the remainder have utilized state, local and, in some instances, federal Temporary Assistance to Needy Families and Social Services Block Grant funds. Extensive research has demonstrated that these programs produce:

* safe and stable placements with fewer disruptions and fewer instances of repeat maltreatment than stranger foster care;

* increased likelihood that children can be placed in their neighborhoods, stay in their schools of origin and be placed together with their siblings;

* reduction in the over-representation of minority children in stranger foster care;

* greater level of attachment by the children to their relative guardians and vice versa; and

* better scores on various cognitive, physical, skill-based and emotional domains and fewer behavioral problems than children in stranger foster care.

See Time for Reform: Support Relatives in Providing Foster Care and Permanent Families for Children (Children and Family Research Center, Kids are Waiting and Generations United, 2007); T. Conway & R. Hutson, Is Kinship Good for Kids? (Center for Law and Social Policy, Mar., 2007).

The authorization under the Act for states to obtain federal Title IV-E foster care reimbursement for the new "Guardianship Assistance program" ("GAP") program and to provide categorical Medicaid eligibility for children covered under GAP presents an opportunity that New York should not let pass by. Approximately one quarter of the State's children in out-of-home care are in the care of relatives; in New York City, the figure for FY 2007 was 28.3% While guardianship may not be the ,solution for many reunification and adoption remain the predominant permanency options - it may provide a viable way out of the foster care system for some. And, while federal reimbursement will not cover 100/0 of guardianship subsidy costs, the children who are eligible already receive foster care assistance with a mix of federal, state and local aid. Moreover, the fact that appointment of a guardian would terminate both court and local social service's district involvement with the family in terms of periodic permanency hearings, conferences, services and supervision will actually reduce the costs of these cases. Thus, achievement of permanency for children through subsidized guardianship will not only be a win for them; it also will be a win for the State in its efforts to improve its substandard record of achievement of the federal permanency targets under the Adoption and Safe Families Act.

This measure also would amend Article 10-A of the Family Court Act to add three elements to the permanency hearing report and court order in order so as to conform the statute more closely to salutary provisions of the Act. They:

* supplement provisions in Family Court Act §1089 regarding the agency's obligation to ensure school or vocational program enrollment, as applicable, by requiring that the report describe "the steps that will be taken by the local social services district or agency to provide for educational stability for the child;"

* supplement sibling placement and visitation provisions in Family Court Act §§1027-a and 1055(i) by requiring that the permanency report and the order include "any plans for visits and/or contacts with siblings;" and

* require the permanency report to describe the steps taken to develop and implement a transition plan, and to furnish an estimate of when a trial or permanent discharge of the youth is anticipated to occur, for youth whose permanency goal is "another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource"; and, where it is anticipated that such a youth's discharge/trial discharge will occur before the earlier of the next scheduled permanency hearing or the passage of one year, the court's order shall direct that the local social services district or agency commence development of a transition plan for the child, in consultation with the child and his or her attorney, and file the final transition plan with the court and provide copies for the child, his or her attorney and all parties no later than 90 days before the child's anticipated discharge from foster care.

This measure would take effect 90 days after it shall have become a law.

2008 LEGISLATIVE HISTORY :

None. New proposal.